Terms and Conditions
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These Terms and Conditions have been automatically translated from Dutch and may therefore contain translation errors. no rights can be derived from incorrect text due to translation errors
These General Terms and Conditions regulate the legal relationship between the Contractor and its clients. The General Terms and Conditions are divided into different modules, which are focused on the various forms of business services, namely:
Module A. General
Module B. Development of (web) applications Module C. Hosting / SaaS
Module D. Hardware
Only the following modules that apply to this agreement are included in this version of the terms and conditions.
Module A. General
Module B. Development of (web) applications Module C. Hosting / SaaS Module D. Hardware
If a specific module is applicable, it takes precedence over the General Module. Insofar as the general part does not conflict with applicable provisions from specific modules, the general part also always applies. The definitions of the capitalized terms apply to all modules.
In these General Terms and Conditions, the following definitions apply:
• Acceptance test: is a (limited) mandatory test effort to be made by the Client in order to complete the Project.
• General Terms and Conditions: these terms and conditions, which have a modular structure.
• Service: software, application, software (as described in the quotation/Agreement).
• Defect: not meeting the Specifications.
• User: the (end) user who uses the . supplied by the Contractor for the benefit of the Client
• Service/Project used.
• Hardware: equipment supplied by the Contractor to the Client.
• Materials: for example (web) applications, software, advice or reports.
• Module: a module of these General Terms and Conditions containing provisions relating to a specific field of activity.
• Client: the natural or legal person with whom the Contractor has concluded an Agreement. This also includes the person who enters into or is negotiating with the Contractor, as well as his representative(s), authorized representative(s), successor(s) in title and heirs.
• Contractor: Fibronic, established in Berkel en Rodenrijs and registered with the Chamber of Commerce under number 84235144.
• Agreement: the agreement between the Contractor and the Client.
• Force majeure: a shortcoming that cannot be attributed to the debtor, if it is not due to his fault, nor for his account by law, legal act or generally accepted standards. Project: the work that the Contractor will perform for the Client, as described in the quotation and/or in the Agreement.
• Project management system: electronic system that can be used for the management of the Project and for communication between the Contractor and the Client about the execution of the Agreement. Results: the results of the work that the Contractor performs on the basis of the Agreement. Written: In these General Terms and Conditions Written also includes e-mail and communication by fax, provided the identity of the sender and the integrity of the message are sufficiently established.
• Specifications: the functional and technical description of the Project.
Module A. General
Article A.1. Quotation, offer and acceptance
A.1.1 A quotation, drawn up by the Contractor, is without obligation and valid until 14 days after it has been dated by the Contractor, unless stated otherwise in the quotation.
A.1.2 The Client should preferably accept the quotation In Writing, but if the Client agrees to the quotation in a manner other than In Writing or gives that impression, the quotation may be regarded as accepted by the Contractor.
A.1.3 Provisions or conditions of the Client that deviate from, or do not appear in, these General Terms and Conditions are only binding on the Contractor if and insofar as they have been expressly accepted in Writing by the Contractor.
A.1.4 Without prejudice to the Contractor’s authority to withdraw the offer in accordance with Article 1, paragraph 1, the Agreement can only be changed after acceptance with mutual consent. In case of conflict of provisions in the documents below, the following order of precedence shall apply:
– 1. the Agreement;
– 2. any appendices, with the exception of brochures;
– 3. these General Terms and Conditions;
– 4. any additional conditions, with the exception of brochures.
Article A.2. Implementation of the Project & provision of information
A.2.1 After the Agreement has been concluded, the Contractor will carry out the Project as soon as possible in accordance with the quotation, taking into account the Client’s reasonable wishes.
The Contractor will make every effort to carry out the Project to the best of its ability, with due care and craftsmanship. The Client is obliged to enable a timely and correct execution of the Project. In particular, the Client shall ensure that all data, which the Contractor indicates are necessary or which the Client should reasonably understand to be
necessary for the execution of the Project, are provided to the Contractor in a timely manner. The necessary efforts of the Client must be delivered with sufficient quality and timeliness. This applies both to support to be provided by the contact persons and to the planned deployment of project staff within the project work to be performed.
A.2.2 If the Client fails to do the above, the Contractor is entitled to charge additional costs and the Project may be delayed. Any delay in the Project, caused by the Client, will be reported via the project management system or, if no project management system has been deployed for the Project, by e-mail or, in the absence of a functioning
e-mail correspondence, otherwise In Writing. Should this situation arise, the Contractor will inform the Client of any additional costs to be charged.
Article A.3. Duration, termination and dissolution
A.3.4 If the Client fails to comply with any of its obligations under the Agreement, the Contractor has the right to suspend the performance of all Agreements concluded with the Client concerned without a notice of default or judicial intervention being required and without prejudice to the Contractor’s right to compensation for damage, loss of profit and interest, unless the non-performance in question is of minor importance.
A.3.5 The Contractor is authorized to dissolve or suspend the Agreement in whole or in part with immediate effect, without judicial intervention, In Writing and without any obligation to pay compensation or compensation, if:
• Client does not, not fully or not on time, fulfill the obligations under the Agreement;
• Circumstances that have come to the attention of the Contractor after the Agreement has been concluded give good grounds to fear that the Client will not fulfill its obligations;
• When concluding the Agreement, the Client was requested to provide security for the fulfillment of its obligations under this Agreement and this security is not provided or is insufficient;
• due to the delay on the part of the Client, the Contractor can no longer be expected to fulfill the Agreement under the originally agreed conditions; The client dies, applies for a moratorium or files a declaration of bankruptcy;
• the Client’s bankruptcy is granted;
• the Client’s activities are shut down or liquidated;
• any part of the Client’s assets is attached;
• circumstances arise which are of such a nature that fulfillment of the Agreement becomes impossible or unaltered maintenance of the Agreement cannot reasonably be expected of the Contractor.
A.3.6 If the Agreement is dissolved, the Contractor’s claims against the Client are immediately due and payable. If the Contractor suspends the fulfillment of its obligations, it will retain its rights under the law and the Agreement.
A.3.7 If the dissolution is attributable to the Client, the Contractor is entitled to compensation for the damage caused directly and indirectly as a result. Article A.4. Procedure after termination
A.4.1 The parties are mutually obliged, after termination of the Agreement, to immediately return any property of which the other Party is the owner or entitled party and which is in the possession of one Party to the other Party. Certain goods, such as data (carriers), can also be erased or destroyed instead of being returned, if the entitled party has given written permission for this.
A.4.2 All data provided or entered by the Contractor remain the property of the Contractor at all times. The Client only obtains a non-exclusive, transferable license which is necessary for the execution of the Agreement.
Article A.5. Prices
A.5.1 Prices are exclusive of turnover tax (VAT) and other levies imposed by the government.
A.5.2 If a price in a quotation is based on information provided by the Client and this information turns out to be incorrect, the Contractor has the right to adjust the prices to the prices reasonably associated with the correct information, even after the Agreement has already been concluded. has come into existence.
A.5.3 All prices stated in the Contractor’s quotation are subject to typing and calculation errors.
Article A.6. Terms of payment
A.6.1 The Contractor will send an invoice to the Client for the amount owed by the Client. If the Project is delivered in phases, the Contractor is entitled to invoice per phase delivered, monthly or on the basis of hours worked (this at the discretion of the Contractor). The payment term of an invoice is 14 days after the date of the invoice, unless otherwise agreed between the Contractor and the Client.
A.6.2 If the Client does not pay in full on time, it will be in default by operation of law from 30 days after the payment term, without any notice of default being required. If an amount due is not paid within the payment term, a contractual interest of 2% per month will be charged on the outstanding amount
€15.00 administration costs owed without further notice of default by the Contractor.
A.6.3 In the event of late payment, in addition to the amount owed and the interest due, the Client is obliged to pay full compensation for both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies.
A.6.4 The claim for payment is immediately due and payable if the Client is declared bankrupt, applies for a moratorium, the Client dies and
furthermore, if it goes into liquidation, it is dissolved or if it is declared bankrupt.
A.6.5 In the above cases, the Contractor also has the right to terminate or suspend performance of the Agreement or any part thereof that has not yet been performed without notice of default or judicial intervention, without the Client thereby acquiring a right to compensation.
Article A.7. Additional work
A.7.1 If, due to wishes of the Client, which can reasonably be regarded by the Contractor as a change or as an addition to the provisions in the quotation or the Agreement (including a delay or overrun with regard to the Project that can be attributed to the Client ), the amount of work that the Contractor must perform under this Agreement increases, then there is additional work.
A.7.2 If the Contractor is of the opinion that there is additional work, it will notify the Client as soon as possible and request Written approval for the execution of the proposed additional work and the offer made by the Contractor for this, including the delivery period.
A.7.3 The Client will always decide on the proposed additional work within five (5) working days. The work that will be performed in the context of accepted additional work will be recorded in Writing and approved by both parties.
A.7.4 The Client is responsible for any overrun of the delivery times stated in the original quotation due to additional work.
A.7.5 The provisions of these General Terms and Conditions apply to all additional work to be performed by the Contractor, insofar as the parties have not agreed otherwise.
Article A.8. Liability
A.8.1 The Contractor’s liability for direct damage suffered by the Client as a result of an attributable shortcoming in the fulfillment by the Contractor of its obligations under the Agreement, expressly including any shortcoming in the fulfillment of a guarantee obligation agreed with the Client, or by an unlawful act by the Contractor, its employees or third parties engaged by it, is limited per event or a series of related events to an amount equal to the fees that the Client owes under this Agreement per year (excluding VAT). Under no circumstances will the total compensation for direct damage exceed 25,000 euros (excluding VAT).
Article A.9. Failures and force majeure
A.9.1 Neither of the parties can be held to fulfill any obligation if a circumstance that is beyond the control of the parties and which could not or should not have been foreseen when the Agreement was concluded, nullifies any reasonable possibility of fulfillment. Parties can only act towards each other
Invoke force majeure if the Party concerned informs the other party In Writing of such an invocation of Force Majeure as soon as possible after the occurrence of the shortcoming, while submitting the necessary supporting documents.
A.9.2 The circumstances referred to in paragraph 1 can be understood to mean, for example: (a) malfunctions of the internet or other telecommunications facilities, (b) shortcomings by parties on whom the Contractor depends for the provision of the Services, (c) defective goods, equipment, software or Materials the use of which the Client has prescribed to the Contractor, (d) the unavailability of one or more staff members (due to illness) and (e) government measures.
A.9.3 In the event of Force Majeure, the fulfillment of the relevant and the related obligation(s) will be suspended in whole or in part for the duration of such Force Majeure, without the parties being mutually obliged to pay any compensation in this regard. The parties can only invoke Force Majeure vis-à-vis each other if the party concerned informs the other party in writing of such an invocation of Force Majeure as soon as possible after the occurrence of the shortcoming, together with the supporting documents.
A.9.4 In the event of Force Majeure, the party that invoked the Force Majeure shall make every effort to ensure that the shortcoming, which is remedied by the Force Majeure, is as short as possible.
Article A.10. Intellectual Property Rights
A.10.1 All intellectual property rights to all Materials developed or made available in the context of the Project rest exclusively with the Contractor or its licensors.
A.10.2 The Client only acquires the rights of use and powers that are explicitly granted in writing in these General Terms and Conditions, the Agreement or otherwise, and for the rest, the Client will not reproduce or make public the software, Services or other Materials.
A.10.3 The Client is not permitted to remove or change any designation regarding copyrights, brands, trade names or other intellectual property rights from the Materials, including indications regarding the confidential nature and secrecy of the Materials.
A.10.4 The Contractor is permitted to take technical measures, for example using passwords or encryption, to protect the Materials. If the Contractor has secured the Materials by means of technical protection, the Client is not permitted to remove or evade this protection.
A.10.5 Any use, duplication or disclosure of the Materials that falls outside the scope of the Agreement or the rights of use granted constitutes an infringement of the intellectual property of the Contractor or its licensors.
A.10.6 The Client will pay the Contractor an immediately due and payable fine of 5,000 euros per infringing act and 25,000 euros per intentionally infringing act, without prejudice to the right of the Contractor to be compensated for its damage caused by the infringement or to take other legal measures to prevent the infringement. terminate and/or recover the damage. After the expiration of one
working day after the Contractor has notified the Client of an infringement, the Client will also owe a fine of 5,000 euros per day that the infringement has not been terminated.
Article A.11. Processing personal data
A.11.1 If the Contractor will process personal data in the performance of the Services for which the Client is responsible, Article 14 of the Personal Data Protection Act (“Wbp”) obliges the Contractor and the Client to enter into commitments with regard to the processing carried out by the Contractor, which offer guarantees with regard to the technical and organizational security measures with regard to the processing to be carried out. In the absence of a further, separately agreed ‘processor agreement’, the provisions in this article will apply as the obligations referred to in the Wbp.
A.11.2 The Contractor will ensure an appropriate security level in view of the risks associated with the processing and the nature of the personal data.
A.11.3 The Contractor also guarantees that anyone acting under the authority of the Contractor, insofar as he has access to personal data for which the Client is responsible, will only process them on the instructions of the Client, subject to deviating legal obligations.
A.11.4 The Client guarantees that it will only input or otherwise make personal data available to the Contractor in a fully lawful manner.
A.11.5 If the Client has to change, delete or hand over data stored in the Contractor’s systems in the context of a legal obligation, for example on the basis of the Wbp, the Contractor will assist in this as much as possible. The costs for the work for this can be
Article A.12. confidentiality
A.12.1 The parties will treat information that they provide to each other before, during or after the performance of the Agreement confidentially if this information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties also impose this obligation on their employees as well as on third parties engaged by them for the implementation of the Agreement.
A.12.2 The Contractor will not take cognizance of data that the Client stores and/or distributes via the Services of the Contractor, unless this is necessary for the proper execution of the Agreement or the quality of the Projects, or the Contractor is obliged to do so by virtue of a statutory provision. or court order. In that case, the Contractor will make every effort to limit its knowledge of the data as much as possible, insofar as this is within its power.
A.12.3 This obligation also continues after termination of the Agreement for whatever reason, for as long as the providing party can reasonably claim the confidential nature of the information.
Article A.13. Changes to Terms and Conditions
A.13.1 If it concerns a continuing performance contract, the Contractor reserves the right to change or supplement these General Terms and Conditions and all Modules therein.
A.13.2 Changes also apply to Agreements already concluded with due observance of a term of 30 days after publication of the change on the Contractor’s Website or by electronic message. Minor changes can be made at any time.
A.13.3 If the Client does not wish to accept a change to these General Terms and Conditions, he may terminate the Agreement until the date on which the new General Terms and Conditions come into effect on this date or on the receipt date of the cancellation if this is after the effective date of the change.
Article A.14. Dispute Resolution
A.14.1 The Agreement, as well as the agreements arising from or related to it and other legal acts, are exclusively governed by Dutch law.
A.14.2 All disputes, including those that are only regarded as such by one party, which arise from or are related to (the implementation of) this Agreement and/or with the resulting or related agreements will be settled through mediation such as offered by ICT Waarborg (hereinafter referred to as Mediation in this article).
A.14.3 The parties mutually undertake to cooperate in the settlement of disputes through Mediation and undertake to each bear half of the costs of the Mediation.
A.14.4 Mediation consists of two phases. In the first phase, the parties investigate a possible solution that both parties can agree to. If agreement is reached on this, the mediator will set out the agreement in a settlement agreement. If it proves impossible in the first phase to reach an agreement acceptable to both parties, a second phase will start. In the second phase, the mediator will work out an agreement that is binding on both parties and which is also reflected by the mediator in a settlement agreement.
Article A.15. Final provisions Module General
A.15.1 If any provision of this Agreement is found to be invalid, this will not affect the validity of the entire Agreement. In that case, the parties will determine (a) new provision(s) as a replacement, which will give shape to the intention of the original Agreement and General Terms and Conditions as much as possible by law.
A.15.2 If any disputes arise as a result of the Agreement that cannot be resolved through the dispute settlement procedure, they will be submitted to the competent court in Amsterdam.
A.15.3 Information and announcements on the Contractor’s Website are subject to errors.
A.15.4 The version of any communication received or stored by the Contractor is considered to be authentic
(including log files), subject to proof to the contrary to be provided by the Client.
A.15.5 In order to promote its services, the Contractor is entitled to show third parties which Projects it delivers to the Client, unless the reasonable interests of the Client make this unacceptable or otherwise agreed in Writing.
A.15.6 The Contractor has the right at all times to involve third parties in the execution of the Agreement.
A.15.7 The Contractor and the Client may transfer their rights and obligations under the Agreement to third parties, provided the other party agrees to this In Writing prior to the transfer.
Module B. Development of (web) applications
Module B applies to customization provided by the Contractor to the Client, for example the design and/or development of (web) applications, software, advice, reports or other specific substantive works.
Article B.1. Delivery & acceptance
B.1.1 The Contractor will make every effort to deliver the Materials to the Client for acceptance in accordance with the Specifications.
B.1.2 When the Materials have been delivered to the Client for acceptance, the Client will subject them to an Acceptance Test at its own expense and responsibility during the acceptance period of one week. By acceptance, the Client discharges the Contractor from all its obligations with regard to the Results.
B.1.3 If the Client does not reject the Materials (in whole or in part) within the period referred to in paragraph 2, they will be deemed to have been accepted and delivered.
B.1.4 The Client is presumed to have also accepted the Materials if the Client has started using the Materials or if the Client has not notified the Contractor In Writing within ten days of delivery at the latest that and for what reason(s) it has not received the Materials. accepts.
B.1.5 If Materials are not accepted, the Contractor will specify which adjustments will be made, including the associated time or any costs. The client will then indicate whether he agrees with the aforementioned adjustments and the associated time and costs or whether he waives the rejection. The Contractor will make every effort to remedy the Defects identified and reproducible by the Client within the term agreed by the parties, and in the absence thereof within a reasonable term.
B.1.6 The implementation of adjustments as a result of a rejection of a Material can take place in a production environment or in an acceptance environment. This is at the discretion of the Contractor.
B.1.7 If the Client has accepted the Results (with the exception of Defects in functionalities and external Defects; minor Defects), the warranty period of 30 days will come into effect. Within this period, the Results are considered accepted, but it is possible to report Defects that could not reasonably have been discovered during the Acceptance Test. The Contractor will identify any Defects
specify and supplement with the expected time and, if the Defects cannot be remedied easily and within 30 days, any additional costs for adjustment of those parts. This warranty period therefore does not apply as an extended Acceptance Test and does not give more guarantees than is stipulated in this paragraph.
B.1.8 Minor Defects, which include Defects that, due to their nature and/or number, do not reasonably prevent the Materials from being used for business purposes, will not be grounds for withholding acceptance, without prejudice to the Contractor’s obligation to repair such Defects. The parties will consult each other about this.
B.1.9 If the Project is carried out in phases, the Client must approve or reject the Materials of that phase after completion of each phase and the above procedure also applies. The Client may not base an approval or rejection of the Materials of a later stage on items that have been approved in an earlier stage.
B.1.10 The Contractor has the right to wait with the start of a new phase until the Client has explicitly accepted the old phase.
B.1.11 The Contractor does not guarantee that what the Client intends with the works to be developed or developed by the Contractor will actually be achieved.
B.1.12 The Contractor makes every effort to develop and make available its products/works as well and as error-free as possible.
B.1.13 The Contractor is entitled to implement temporary solutions, whereby certain functionalities are limited in order to prevent serious errors.
Article B.2. Progress
B.2.1 The Client and the Contractor agree on the specific phases, delivery dates and terms for the Project in mutual consultation, for example in the Quotation or the Agreement.
B.2.2 The Contractor will keep the Client informed of the progress of the Project at least once every fourteen days by e-mail, telephone or via the project management system.
Article B.3. Specifications & (source) materials
B.3.1 The parties will specify in Writing which works will be developed, which requirements they must meet and how this will be done. The Contractor will carry out the development with care on the basis of the information to be provided by the Client. The Client guarantees the correctness, completeness, consistency and timeliness of its instructions and data.
B.3.2 A Written specification as referred to in Article 3.1 is not required if the Client has expressed the wish to offer the Contractor a high degree of freedom in the development of works and the manner in which this is done. If the development has taken place in this way, the Client cannot subsequently invoke Specifications, which have been put in writing, to which the Contractor has not agreed.
B.3.3 The Contractor is entitled, but not obliged, to verify the correctness, completeness or consistency of the (source) Materials, requirements or
to examine specifications and, if any deficiencies are found, to suspend the agreed work until the Client has removed the relevant deficiencies.
B.3.4 If (source) Materials provided by the Client to the Contractor are protected by any intellectual property right, the Client guarantees at all times that it has all licenses necessary for the provision to and intended use by the Contractor in under the Agreement.
B.3.5 Unless otherwise agreed, the Contractor has the right to use images, software and components from third parties, including open source software, in the development of the works. After delivery, the responsibility lies for correct compliance with the relevant third-party licenses when using the developed works at the Client. The Contractor will sufficiently inform the Client about the applicable license conditions. Costs associated with the licenses, which are necessary for the execution of the Agreement, will be charged to the Client. This is specified in the offer.
B.3.6 Client is responsible for its own applications, Services and infrastructure
up-to-date for interoperability with the products and the Service of the Contractor. This in connection with any links. Applications may not work properly if they don’t.
B.3.7 The Contractor is not liable for the Project / Service being unusable if the unusability is caused by the Client not migrating in time (on the instructions of the Contractor) to current standards or using standards that are no longer supported in the industry. . A standard that was introduced 24 months ago is no longer considered current by the Contractor. This exclusion of liability also applies if the Client works with a version of an internet browser whose use and support is no longer self-evident due to the appearance of a new version of that internet browser.
Article B.4. Development License Terms
B.4.1 The Contractor grants the Client the right to reproduce and distribute developed Materials for the purposes intended by the Client when entering into the Agreement.
B.4.2 The Contractor will never transfer any intellectual property rights (such as copyright) accruing to the Contractor (such as copyright) to the Client, unless expressly agreed otherwise in Writing.
B.4.3 The source code of software supplied by the Contractor, not being open source software, and the technical documentation produced during the development of the software may and will never be made available to the Client, nor may the Client make any changes thereto, unless expressly stated in Writing otherwise agreed.
B.4.4 The Contractor grants the Client the non-exclusive right to use the Service/software developed for the Client. Client will
always strictly observe the usage restrictions agreed between the parties. The right of use provided is not transferable.
B.4.5 The Client is not permitted to sell, rent, sublicense, alienate or grant limited rights to the developed works or make them available to a third party in any way or for any purpose whatsoever, not even if the the third party concerned uses the software exclusively for the benefit of the Client, unless otherwise agreed in Writing or in the event of and in combination with a sale of the relevant business units or activities of the Client.
Module C. Hosting / SaaS
This module applies to the provision by the Contractor ‘remotely’ and to keep it available (hosting) of data and/or (web) applications to the Client via the internet or another network, without the Client having to use a physical carrier with the relevant software. is provided. This also includes the registration and management of domain names.
Article C.1. Performance
C.1.1 After the Agreement has been concluded, the Contractor will perform the Service as soon as possible in accordance with the quotation, taking into account the Client’s reasonable wishes.
C.1.2 The Agreement determines when the Contractor will start installing and managing the (web) application.
C.1.3 The Contractor will make every effort to ensure that the (web) application is configured and managed to the best of its ability, with due care and craftsmanship.
C.1.4 The Client is obliged to do and not do everything necessary to enable a timely and correct installation of the (web) application. In particular, the Client shall ensure that all data and facilities, which the Contractor indicates are necessary or which the Client should reasonably understand to be necessary for the installation of the (web) application, are made available to the Contractor in a timely manner.
Article C.2. Duration agreement
C.2.1 The Agreement is entered into by the Client for a minimum duration of twelve (12) months. After this, the Agreement will be continued for an indefinite period of time. After the end of the minimum term, the Agreement can be mutually terminated with due observance of a notice period of at least one (1) month. Termination of the Agreement by the Client or the Contractor must be done In Writing.
Article C.3. Code of conduct
C.3.1 The Client shall refrain from storing and/or distributing or having distributed material in violation of provisions of Dutch law, including in any case (but not
exclusively) material that is libelous, defamatory, abusive, racist, discriminatory or hateful, erotic or pornographic (unless expressly permitted in the offer), infringes rights of third parties, including in any case (but not limited to) copyrights, trademark rights and portrait rights, constitutes a violation of the privacy of third parties, including in any case (but not limited to) the dissemination of personal data of third parties without permission or necessity or the repeated harassing of third parties with unwanted communication, hyperlinks, torrents or contains comparable information that the Client knows or should know to refer to material that infringes the rights of third parties, contains unsolicited commercial, charitable or ideal communications, or contains malicious content such as viruses or spyware.
C.3.2 The Client shall refrain from hindering other Clients or internet users or from causing damage to the Contractor’s servers. The Client is prohibited from starting up processes or programs, whether or not via the server, of which the Client knows or can reasonably suspect that this will hinder or cause damage to the Contractor, other Clients or internet users. The Contractor will inform the Client of any measures.
C.3.3 In addition to the obligations under the law, damage that arises due to incompetence on the part of the Client or the failure of the Client to act in accordance with the above points, is for the account of the Client.
C.3.4 To prevent the aforementioned problems such as damage and security risks, the Contractor is entitled, at its own discretion, to limit the Client’s management options to such an extent that the management is performed in its entirety by the Contractor.
Article C.4. License
C.4.1 The Client hereby grants the Contractor an unlimited license to distribute, store, transmit or copy all Materials supplied by the Client to the Services of the Contractor in any manner deemed appropriate by the Contractor, but only to the extent that this is reasonably necessary for the fulfillment of the Agreement by the Contractor.
Article C.5. Disclaimer
C.5.1 The Client indemnifies the Contractor against all legal claims from third parties with regard to the use of the Services by the Client. The Contractor is not responsible for the data/Services/software which are called up by means of a link.
C.5.2 If the Contractor is required to perform work with regard to data of the Client, its employees or Users on the basis of an authorized order from a government agency or in connection with a legal obligation, all associated costs will be charged to the Client.
Article C.6. Service and availability
C.6.1 All services of the Contractor are performed on the basis of a best efforts obligation, unless and insofar as the Contractor has expressly promised a result in the Written Agreement and the relevant result has also been described with sufficient precision.
C.6.2 The electronic transmission of data from the Client in the context of the Services, in whatever manner, is at the risk and expense of the Client.
C.6.3 The Contractor is never obliged to deliver the applications made available remotely to the Client on a physical data carrier (eg CD or USB stick).
C.6.4 If the Services are (also) provided via Services and/or networks of the Contractor, the Contractor will make every effort to minimize downtime.
C.6.5 The Contractor offers no guarantees about the exact amount of uptime, unless otherwise agreed in the quotation by means of an SLA designated as such. Insofar as not provided otherwise in an applicable SLA, this article applies.
C.6.6 Subject to proof to the contrary, the availability and service level measured by the Contractor will serve as full proof.
C.6.7 The Contractor will make every effort to ensure that the Client can use the networks that are directly or indirectly connected to the Contractor’s network. However, the Contractor cannot guarantee that these networks are available at any time. The use of third party networks may be subject to legal and contractual conditions. The Contractor will make every effort to inform the Client about this in a timely manner.
C.6.8 If, in the opinion of the Contractor, a danger arises for the functioning of the Services or the network of the Contractor or third parties and/or of the services provided via a network, in particular due to excessive sending of e-mail or other data, secured Services or activities of viruses, trojans and similar software, the Contractor is entitled to take all measures that it deems reasonably necessary to prevent this.
C.6.9 The Contractor has the right to temporarily put the Services or parts thereof out of use for the purpose of maintenance, adjustment or improvement. The Contractor will try to have such a shutdown take place outside office hours as much as possible and will make every effort to inform the Client in good time of the planned shutdown. However, the Contractor is never obliged to pay compensation for damage that has arisen in connection with such decommissioning, unless explicitly agreed otherwise in Writing, for example in an SLA.
C.6.10 The Contractor is obliged to have a fall-back center or other fall-back facilities only if expressly agreed in Writing.
C.6.11 Unless the Agreement provides otherwise, the Contractor is not obliged to make backup copies of data stored by the Client on the Contractor’s Services. Any backups made can be destroyed at any time after termination of the Agreement. It is the Client’s responsibility to request a backup upon termination or dissolution.
Article C.7. Amendments
C.7.1 The Contractor is entitled to adjust the applications made available during the term of the Agreement at its own discretion. If an adjustment leads to a significant change in functionality, the Contractor will make every effort to inform the Client thereof. The Client can only continue to use an older version of the application on request if this is technically possible and would not require a disproportionate effort on the part of the Contractor. The Contractor may charge additional costs for providing this option.
Article C.8. Storage and data limit
C.8.1 The Contractor can set a maximum to the amount of storage space or data traffic per month that the Client may use in the context of the Services. The Client will not exceed the limits, unless the Agreement expressly regulates the consequences thereof. If this maximum is exceeded, the Contractor is authorized to charge an extra amount, in accordance with the amounts for extra data traffic stated in the Agreement. If no storage and/or data limit is agreed, the Contractor’s fair use policy will apply.
Article C.9. Procedure after termination
C.9.1 The Contractor will ensure that upon termination of the Agreement, the Client is given a reasonable opportunity to transfer the Client’s data stored in the Contractor’s systems back to its own systems or to the systems of a new provider. For this purpose, the Contractor will make every effort to be able to offer the data in a common file format.
Module D. Hardware
This module applies to Contractors who supply Hardware to Clients.
Article D.1. Delivery and Ownership
D.1.1 Hardware is delivered to the Client if it has been delivered to the delivery address specified by the Client in the order and this delivery has been accepted by the Client.
D.1.2 The Client is obliged to check the Hardware for defects upon delivery, insofar as reasonably possible at that time.
D.1.3 Ownership of the Hardware transfers from the Contractor (or its suppliers) to the Client at the time of delivery to the delivery address specified by the Client in the order, but only if payment for the Hardware has been made in full by the Client.
Article D.2. Guarantee
D.2.1 After delivery, the Contractor guarantees the operation of the delivered Hardware in accordance with the specifications announced to the Client in advance for a period of 1 year after delivery and can be held accountable for this by the Client.
D.2.2 If the manufacturers of the Hardware supplied have specific warranty schemes that are longer than the warranty issued by the Contractor, these will remain valid and the Contractor remains responsible for the correct handling of Hardware that falls under that warranty scheme.
D.2.3 The warranties issued by the Contractor and manufacturers do not affect the statutory warranty period that applies to the Hardware.
D.2.4 The warranty on Hardware lapses in the event of unauthorized changes, failure to comply with the instructions for use or other careless use of the Hardware by the Client.
D.2.5 If the Client makes use of the warranty scheme within the set terms and rules, the Contractor will make every effort as soon as possible, but no later than 30 days after the correct receipt of the returned Hardware, for the repair of the Hardware or for replacement Hardware. to care.
D.2.6 The Contractor is not liable for the loss of data resulting from the repair or replacement of Hardware.
Article D.3. Returns
D.3.1 If the Client makes use of the guarantee scheme, the Client will return the delivered Hardware and all accessories to the Contractor as much as possible in the original state of delivery.
D.3.2 If there are costs associated with the return within the framework of the guarantee scheme, these will be borne by the Client.